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About "The Oracle of Amsterdam"

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the company according to foreign lawGLOBAL GAMING FACTORY X AB, having offices in Stockholm, Sweden,summoned,lawyers Mr. R. Dijkstra and Mr. P.A. van den Brink of Amsterdam

Parties will be named Stichting Brein and GGF hereafter.

1. The Proceedings

At a hearing of 21 July 2009 this case was handled at the same time as the case of Stichting Brein against Neij, Kolmisoppi and Warg (case and roll number 428212/KG ZA 09-1092. Stichting Brein has proposed and sent the summons attached to this ruling in a photocopy. GGF has defended itself with the conclusion of rejecting the measures asked. Both parties brought documents and plea briefs in the case. After further debate, the parties asked for judgment.At the hearing were present on behalf of Stichting Brein: K.H.J. Habraken, corporate lawyer, J.J. W. Van Vooren, head of enforcement, P.A. Haringsma, corporate lawyer, with Mr. Groenevelt and Van Manen.

On behalf of GGF Mr. Dijkstra and Mr. Van den Brink were present.

2. The Facts

2.1 Stichting Brein has its its statuatory goal the legal enforcement of the intellectual property rights of parties attached to it.

2.2 Stichting Brein represents the large majority of the Dutch copyright holders in the area of music, film and computer games.

2.3 GGF is a company occupied with internet ads and software development, specially targeting applications in internet cafes and gaming centers. GGF is listed on the Swedish stock exchange Aktietorget. On Tuesday 30 June 2009 GGF announced that it would take over the whole business of The Pirate Bay, including all the websites allied to it.

2.4 The Pirate Bay was launched in 2004 as web site thepiratebay.org on which so called BitTorrents are offered. With BitTorrents the exchange of files between computers on the internet is possible, by which computers of internet users are in direct contact with each other for exchanging files ( the peer-to-peer protocol).

2.5 The Pirate Bay makes use of websites reachable by the following domain names:thepiratebay.org, piratebay.org, piratebay.net, piratebay.se, thepiratebay.com, thepiratebay.net, thepiratebay.nu and thepiratebay.se.

2.6 On 5 May 2009 Stichting Brein summoned the original founders of the Pirate Bay, who are still seen as owners and managers, to immediately end activities focused on the Dutch market. In the ruling of 30 July 2009 of the summary judge of this court, the owners/managers of The Pirate Bay were ordered to make the website inaccessible for Internet users in the Netherlands.

2.7 On 30 June 2009, GGF published a press release in which it announced the takeover of The Pirate Bay. In the press release was, for so much is of interest, stated:

The responsibility for, and operation of the site will be taken over by GGF in connection with closing of the transaction, which is scheduled for August 2009."We would like to introduce models which entail that content providers and copyright owners get paid for content that is downloaded via the site" said Hans Pandeya, CEO GGF.

stated: 3. The Dispute

3.1 Stichting Brein asks _ summarized _ to have GGF ordered to, at pain of a fine, stop and keep stopped the (imminent) infringements of the copyright and neighboring rights of those attached to Stichting Brein, and to do this by making the website thepiratebay.org, and the related (tracker)servers and databases, including also the (tracker)servers that are accessible via other websites (see 2.8) or other variations thereof, inaccessible for internet users in the Netherlands. Further Stichting Brein asks to have the term as intended in article 1019i in the Lawbook of Civil Law Orders (Rv) set at two months, and to rule GGF to pay the full costs of the proceeding as intended in article 1019h Rv.

3.2 Stichting Brein sets _ in very short summary _ the following at the basis of its demands. On the websites of The Pirate Bay (see 2.8) are lists of copyright protected works such as music, film and computer games, and also other software. The Pirate Bay, by means of the torrent technology, makes it possible for internet users to download copyright protected works from the computers of others. This is a publication in the sense of Article 1, subparagraph 12 of the Copyright Law (Aw) and making available in the sense of Articles 2 paragraph 1 subparagraph d, 6 para 1 sub c and 7a para 1 sub c of the Neighboring Rights Laws (Wnr). The copyright holders who are attached to Stichting Brein, and whose interests it defends, have not granted permission for this publication and making available. Nor are they immunized for these (illegal) acts. The damage suffered speaks for itself, every free downloaded work won't be sold via the official channels. With that, the urgent interest of Stichting Brein in its demands is made clear. GGF has announced at the end of June 2009 that it will take The Pirate Bay over from the original founders (who are summoned in the other case handled at the same time as this one). Thus they may continue the infringements committed against copyrights.

3.3 GGF argues _ shortly stated _ that the takeover of The Pirate bay is not yet completed. Thus GGF is improperly pulled into this case because they are not making the claimed infringements on the copyrights of those attached to Stichting Brein possible. GGF does not yet have management of the websites that belong to The Pirate Bay, so that it cannot do what is asked. Thus Stichting Brein has no interest at stake in her demands against GGF. Furthermore, the agreement to take The Pirate Bay over contains conditions, among which is the condition that the websites must be completely legal. GGF wants to achieve this in any case by making users pay for downloading games, films and music and by submission ["afdracht"] of copyright royalties to rights holders or their representatives. Only if it is certain that GGF can make use of The Pirate Bay in a legal manner will the takeover be completed.

4. The Judgment

4.1 The infringements claimed by Stichting Brein upon copyright and neighboring rights take place, insofar as of interest in this ruling, in the Netherlands, so that this court, and with it the summary rulings judge, have jurisdiction to oversee the dispute, insofar only as it relates to the Netherlands.

4.2 GGF has argued that Stichting Brein has no interest at stake in its demands against GGF, given that it is not yet the owner of the website The Pirate Bay, and after the takeover of it, it wants to use the website in a legal manner. The takeover of The Pirate Bay was agreed on the basis of that condition that states as much, according to GGF. The position of Stichting Brein, by contrast, is that the chance exists that the infringements on copyright of the rights holders attached to it will be continued by GGF. Stichting Brein has, without objection, added that GGF until the present has not entered discussions with it about the steps necessary to legalize The Pirate Bay in the short term. The takeover by GGF of The Pirate Bay is planned for August 2009. If that takeover occurs without futher changes ("voorzieningen") in the way The Pirate Bay operates, GGF threatens to infringe copyrights of the organizations attached to Stichting Brein. Because of this imminent infringement, Stichting Brein does have an interest at stake in its demands with respect to GGF. In a (claimed) infringement on a copyright, the necessary urgency of the measures requested is demonstrated in the sense that every day the infringement continues, it can lead to (more) damage to the rights holders.

4.3 GGF did not dispute that The Pirate Bay continues to infringe copyrights of the organizations attached to Stichting Brein, therefore they are assumed.

4.4 The other claims of Stichting Brein against GGF that were not objected to are therefore be granted in summary judgment. GGF has still stated that they don't have The Pirate Bay in possession, so that they cannot satisfy that which is demanded. This objection does not lead to a rejection of what is demanded, but will be honored in the sense that the demands against GGF will be granted from the moment that it has taken over The Pirate Bay.

4.5 Now that the claim against GGF is granted from a point in time that is uncertain, the parties are both partially ruled against. Therefore, the costs of the proceedings will be compensated in the manner related hereafter.

5. The Decision.

The summary judgments judge

5.1 Orders GGF from the moment that it has taken over The Pirate Bay to stop and keep stopped within 10 days the infringements in the Netherlands of the copyright and related rights of those attached to Stichting Brein, undertstanding that to include offering their services as middlemen as intended in Article 26d of the Copyright Law (Auteurswet) and Article 15e in the Law of related rights, at risk of a penalty of EUR30,000 for each day that they act contrary to this, to a maximum of EUR3,000,000.00.

5.2 Orders GGF from the moment it has taken over The Pirate Bay to to carry out the order under 5.1 by making the websites thepiratebay.org, piratebay.org, piratebay.net, piratebay.se, thepiratebay.com, thepiratebay.net, thepiratebay.nu and thepiratebay.se, or other variations thereof, inaccessible for internet users in the Netherlands, at risk of a fine of EUR30,000 for each day that they act contrary to this, to a maximum of EUR3,000,000.00.

5.3 Sets the term as intended in Article 1019i of the Lawbook of Civil Law at two months from the date of this ruling.

5.4 Compensates the costs of the proceeding such that each side bears its own costs.

5.5. Pronounces this ruling must be preliminarily enforced whether it is appealed or not.

5.6. Rejects anything else or more sought by plaintiff.

This judgment was made by Ms. W. Tonkens-Gerkema, summary judgments judge, assisted by Ms. R. Verloo, griffier, and delivered in public July 30, 2009.

1. The Procedure (Case)1.1 At the hearing of July 21, this case was handled at the same time as the case of plaintiff against Global Gaming Factory X AB, having offices in Stockholm, Sweden, case and roll number 432071 / KG ZA 09-1411. With that, plaintiff presented the summons attached as a photocopy to this ruling. Then plaintiff asked for judgment. At the sitting were present: K.H.J. Habraken, corporate lawyer, J.J. W. Van Vooren, head of enforcement, P.A. Haringsma, corporate lawyer, with Mr. Groenevelt and Mr. Van Manen.

1.2 On 27 July 2009 this court received an undated letter from the 'summonees' (defendants). In this, they write among other things that they didn't know about the hearing, and that they furthermore are not capable of traveling to Amsterdam for the purpose of being present at the hearing, or of hiring a lawyer to represent them. Further, they carried out a substantive objection with the conclusion that the measures sought should be rejected.

1.3. Because the defendants did not appear in the manner prescribed, no consideration can be taken of the substantive objections raised in the aforenamed letter, received on July 27, 2009. Now that the defendants emphatically have said that they are not planning to appear (in person or represented by a lawyer), the brief cannot be considered as negating any ruling in absentia that may later be given to the defendants.

2. The judgment

2.1 The infringements on copyright and related rights of those attached to plaintiff, who stands for the rights of those attached, take place, for as far is of interest, in the Netherlands, so that this court, and with it the summary judgments judge, is competent to hear this dispute, insofar as it relates only to the Netherlands.

2.2 The dispute is related to the activites of The Pirate Bay, a website registered in Sweden. The Pirate Bay is not a legal person who can be summoned separately, but a cooperation of (the) defendants.

2.3 From the documents produced and handed over by the plaintiff, it follows that they have had the summons, including the Swedish translation of it, first of all had registered (laten betekenen) at the central receiving agency in Sweden named in Article 3 of EC Service Regulation. From the documents presented by the plaintiff, however, it cannot be concluded that by the registering of the summons of the defendants in Sweden, Article 7 subparagaph 1 EC Service Regulation was satisfied. Plaintiff tried, further, to have the summons delivered directly by a Swedish bailiff (deurwaarder). This did not succeed.

2.4 The preliminary measures judge can, in urgent cases for summary judgment, grant a ruling in absentia anyway against a defendant living abroad, even when the subpoena proscriptions have not been satisfied, as long as it is assured as much as possible that the summons has actually reached the one for whom it is intended, and promptly enough that he still has the opportunity to make an objection. Plaintiff has delivered the summons on June 19 and 23 2009 by e-mail to the defendants, making use of an email address of the one in whose name the domain name thepiratebay.org is registered (defendant 1). In addition, defendant 1 has reacted from that same e-mail address on May 6, 2009 to an e-mail of a lawyer of plaintif in which this case is announced. Plaintiff also sent the summons in the Swedish language to the lawyers who assisted the defendants in a recent criminal case in Sweden, and by registered mail to each of the defendants personally at the addresses where according to the Swedish population register, they are registered. From the reciept of the courier that was used for that, it appears that those summons were delivered on June 26, 2009 to defendant 2 and on July 2, 2009 to defendants 1 and 3.In addition, the plaintiff has made use of internet communication such as Twitter and Facebook and, as stated above, e-mail. In each of the messages in the English language for each of the defendants' known addresses, plaintiff has sent a link to a specially made website, which can only be opened by clicking that link, where a complete summons in the Swedish language was placed. This webpage was visited by a user with an IP address that is hosted by the organization Piratebyran of Sweden, (which is) according to the plaintiff, the founder of The Pirate Bay.Then Plaintiff has made an international press release about the delivery of the summons to the defendants by means of Facebook and Twitter and published it. That defendants have made it known to the media that they didn't know about the case against them in the Netherlands is in light of the above, not plausible.It is to be concluded that _ given the background of the urgent character of the accusations _ sufficient care has been taken that the defendants were aware of this proceeding in a timely fashion, and have been able to become aware of the contents of the summons. Thus, they did have the possibility to defend themselves by either appearing or instructing a lawyer to appear for them. Given that, as in the letter cited under 1.2, they are also not planning to do this at any hearing that may be set for a later date, an in absentia ruling can be made against the defendants.

2.5 The (plaintiff's) demand does not appear to be unlawful or without basis and therefore will be granted as follows. The period of time set for satisfying this decision is considered reasonable.

2.6 The demanded payment will be limited as follows.

2.7 Defendants shall, as the party that has been largely ruled against, have to pay for the costs of the proceedings. Plaintif has demanded judgment against the defendants in the whole costs of the suit based on article 1019h Rv and set this at an amount of EUR61,155.85, of which the amount of EUR2,430.11 for the translation of the summons and delivery of it in Sweden. The complete costs can only be assigned to the extent that they are in line with the costs related to the infringement on intellectual property and to the extent that these costs are reasonable and fair. Plaintiff has stated that her total costs concern both procedures, handled simultaneously. Given the criteria named above, the salary of the lawyer, including the "unrecoverable costs of collecting outside the law" (untranslatable: forfaitaire buitengerechtelijke incassokosten), is set at the amount of EUR40,000, and the exploitation costs, including the Dutch subpoenaed summons, at EUR2,500.00. The demand shall then also be assigned in those amounts. The costs on the plaintiff side are budgeted at: (summation) EUR42,762.00

3. The Decision

The summary judgments judge:

3.1 Grants an in absentia ruling against the defendants who didn't appear.

3.2 Orders Neij, Kolmisoppi and Warg, each separately and together, to stop within 10 days and keep stopped the infringements in the Netherlands of the copyright and neighboring rights of those attached to Stichting Brein, undertstanding that to include offering their services as intermediaries as intended in Article 26d of the Copyright Law (Auteurswet) and Article 15e in the Neighbouring Rights Act, at risk of a penalty of EUR30,000 for each day that they act contrary to this, to a maximum of EUR3,000,000.00.

3.3 Orders Neij, Kolmisoppi and Warg, each separately and together, to carry out the order under 3.2 by making the websites thepiratebay.org, piratebay.org, piratebay.net, piratebay.se, thepiratebay.com, thepiratebay.net, thepiratebay.nu and thepiratebay.se, or other variations thereof, inaccessible for internet users in the Netherlands, at risk of a fine of EUR30,000 for each day that they act contrary to this, to a maximum of EUR3,000,000.00.

3.4 Sets the term as intended in Article 1019i of the Lawbook of Civil Law at two months from the date of this ruling

3.5 Rules process costs against the defendants, on the side of the plaintiff budgeted at EUR42,762.00 up until the present.

3.6 Pronounces this ruling must be preliminarily enforced whether it is appealed or not.

3.7 Rejects anything else or more sought by plaintiff.

This judgment was made by Ms. W. Tonkens-Gerkema, summary judgments judge, assisted by Ms. R. Verloo, griffier, and delivered in public July 30, 2009.

Tuesday, July 21, 2009

After a recent vacation to the United States, I decided to start seeking Dutch nationality again.

(Willem ten Broek)

This isn't to say that I had any revelations about America while I was there. It just really doesn't feel more like home than Holland does anymore.

I tried to become Dutch once before, and actually was naturalized, but I was later stripped of my Dutch passport after refusing to renounce my U.S. citizenship.

While I was back, I was talking about such matters with a lady who was camping near us in the Sierras. She asked "but isn't the U.S. the greatest country on Earth? Why would you want to live anywhere else?"

Questions like that don't bother me. I think quietly to myself -I can't rank a country any more than I can rank a friendand-Wasn't the central lesson of the 20th century to distrust nationalism?

And then I smile and say "there are things about the Netherlands that I love, just like there are things about the U.S. that I love."

And I leave it at that. It's not like me to be so diplomatic. Must be old age.

But then, there are also things about both countries that depress me ...

Back in March, the City of Amsterdam summoned me up for citizenship (inburgering) classes. This bothered me a bit, since I was already forced to take citizenship classes here once before. Yes, I passed the first time around.

Anti-immigrant sentiment remains strong in the Netherlands, despite Geert Wilders having fallen off the foreign media map for the time being.

So I decided to try to give the bureaucrat in front of me a hard time.

It was much harder to speak Dutch, hold the camera and be cool and collected at the same time than I expected!

After a formal appeal, I was allowed to skip a second round of inburgering and language classes.

Hopefully I'll get that Dutch passport and then I won't have to jump through these hoops, ever again.

There is one final hurdle, though, if they agree.

In order to be granted citizenship, I must attend a 'citizenship ceremony,' which is a kind of party attended by a local politician (some party) where I will be required to swear an oath (in Dutch):